The Chicago v. Shannon

• Decision Date: 31 January 1867
• Citation: 1867 WL 5039,43 Ill. 338
• Parties: THE CHICAGO AND ALTON RAILROAD COMPANYv.SAMUEL P. SHANNON, Administrator, etc.
• Court: Illinois Supreme Court

43 Ill. 338

1867 WL 5039 (Ill.)

THE CHICAGO AND ALTON RAILROAD COMPANY

v.SAMUEL P. SHANNON, Administrator, etc.

Supreme Court of Illinois.

January Term, 1867.

APPEAL from the Circuit Court of McLean county; the Hon. JOHN M. SCOTT, Judge, presiding.

The facts in this case are fully stated in the opinion of the Court.

Messrs. WILLIAMS & BURR, for the appellant.

Mr. W. H. HANNA, for the appellee.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action on the case brought under the statute by Samuel P. Shannon, as administrator of Joseph W. Shannon, deceased, for the benefit of the next of kin, against the railway company, for wrongfully causing the death of the said Joseph, who was a brakeman upon said road. The plaintiff below recovered judgment for $2,000 and the defendant appealed. The death was caused by the explosion of the boiler of the locomotive while the train to which the deceased belonged was in motion, on the 18th of May, 1865. The suit is brought upon the ground, that the boiler was unsafe and was known to be so to the appellant.

It is urged by the counsel for the appellant, in a very elaborate review of the testimony, that the judgment should be reversed because the verdict was against the evidence on the main point -- the insecurity of the boiler. The rule of this court has been so often announced as hardly to need repetition -- that, unless the verdict is clearly against the evidence, and can be considered only as the result of passion, prejudice or a palpable misapprehension of the facts, it is not the province of the court, for that reason, to interfere. The law entrusts the trial of issues of fact to a jury, and there the court must leave it, except so far as may be necessary to interfere to prevent a plain perversion of justice. Where the record discloses a conflict of testimony among witnesses standing equally unimpeached, and with equal means of information, and the issues have been fairly left to the jury by the instructions of the court, we must necessarily say, in regard to the verdict, that it is the province of the jury to determine the weight of testimony, and if the record contains evidence upon which their finding can be fairly and reasonably based, we are not at liberty to set it aside, even though there is other and adverse testimony which, as we read it in the record, seems to us rather to preponderate. There is much truth in the remark so often made, that the credibility of conflicting witnesses can be much better determined by a jury who sees and hears them, than by an appellate court which merely reads their testimony as embodied in a bill of exceptions.

As to the main question in the present case, it is undeniable, that the evidence is of that conflicting character, upon which it is the peculiar province of a jury to decide. Hugh McGee testified, that he had been a boiler maker thirteen years; that he worked in the machine shops of the defendant during the summer of 1864; that while there he worked on the engine in question, and put some stay-bolts in the side of the fire-box; that it was not braced as he would like to see a first class engine braced, and that after the explosion he examined it, and found a crack, apparently an old crack, running from the edge of the sheet that had burst. He further says, that he called the attention of the master mechanic, and the foreman boiler maker to the crack, and they examined it. They, however, when called by the defendant, swore that they never made an examination of the boiler with McGee, and that, although they carefully examined it, they found no old crack.

The plaintiff also read the deposition of John W. Johnson, who testified, that he had been a boiler maker over thirty years, and was foreman in the boiler shop of the defendant at Bloomington. This locomotive was repaired while he was in the shop in 1864, and was about finished when he left. The stay bolts inside the boiler were very weak, and he took them out and put in as many new copper ones as they would allow him, and put in a number of extra ones where none had been before. He considered the boiler very weak, and the copper of the fire-box too light. Did not consider it safe, and cautioned one of the men that saw it about the boiler's weakness, and told the master mechanic of its weakness. He says, he does not think the boiler was safe for the business it had to do. We understand this witness as referring to the condition of the boiler after it was repaired as well as before.

Edward Stone, also called by plaintiff, had been a boilermaker for thirty years, had worked on the boiler in question; the side sheets of the fire-box were bulged in three inches; the stay bolts were seven or eight inches apart in some places, and should not have been more than three, or four, or five. He put in new stay bolts where it was bulged. The boiler came upon the road in August or September, 1863, and the repairs referred to by this witness were made three or four months after that time. He says he saw the boiler after the explosion, and does not think it was properly braced in the crown-sheet. Did not consider the boiler safe.

Besides these boiler makers, the plaintiff called several locomotive engineers connected with the road, and several machinists who worked in the shops, and proved by them, that this engine had had a bad reputation from the time it came upon the road, and that it was not considered safe. This evidence of reputation was admitted, and properly, for the purpose of showing that the persons having charge of the machinery of the road knew, or ought to have known by reasonable diligence, that this locomotive was not safe. It was also found that the boiler, when in use, emitted a peculiar cracking or snapping sound, which was unusual, and was made a subject of remark among the engineers, one of whom swears he did not think the boiler safe, and did not like to run this engine, and he several times reported it to the foreman of the round-house.

The defendant called the master mechanic, the foreman of the round-house, the foreman of the boiler shop, and the foreman of the blacksmith shop. The deposition of one of the firm in Philadelphia, that manufactured the engine, was also taken. All these witnesses testify minutely and positively as to the construction and condition of the boiler, swearing that it was made of the best materials, and in the best manner, and had been put in thorough repair, and that the boiler and engine were of the first quality. Two of these witnesses also swear, that from certain indications about the boiler after the explosion, they were of opinion that the...